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Knesset, Supreme Court go head-to-head over Nation-State law

Israel’s right-wing blasts Supreme Court’s decision to hear arguments against the Basic Law. 

By David Isaac, World Israel News

The Israeli High Court of Justice, with an expanded panel of 11 judges, heard 15 petitions against the Nation-State Law. The mere act of sitting in judgment on the law has caused a political uproar in Israel.

The essence of the argument of those who oppose the court’s interference is that it has no authority to do so as the Nation-State law is a Basic Law, the name given to laws that carry a super-legal, or quasi-constitutional, status.

While Israel does not have a constitution, the Supreme Court in 1995 declared that Basic Laws were like a constitution. The court’s interest in doing so was to give itself the ability to overturn Knesset laws by pointing to the Basic Laws as a still higher law hovering above all branches of government, critics say.

Judicial observers have long questioned whether the court had the right to treat Basic Laws as a kind of constitution to begin with as the Knesset, which passed the laws, never intended them to be treated as such. Now opponents of the court’s activism are pointing to the internal contradiction of Tuesday’s hearing, noting that the court is sitting in judgment on the very type of law from which it claims to derive its authority to sit in judgment on laws.

Yosef Fuchs, Channel 20’s legal commentator, tweeted, “The High Court assumed the authority to invalidate laws on the basis of the recognition of Basic Laws as a kind of constitution. And it now allows itself to debate the constitution itself.”

Minutes before the hearing was to start, Speaker of the Knesset and Likud MK Yariv Levin sent a warning shot across the court’s bow in the form of a letter telling the court’s president, Esther Hayut, that if the court rejected the law, the Knesset would ignore that rejection.

“The very hearing in itself in the Supreme Court on matters of Basic Laws represents an affront to the most basic democratic principles of the sovereignty of the people, separation of powers and rule of law,” Levin wrote.

Prime Minister Benjamin Netanyahu also weighed in on the court’s decision to hear the petitions. “The court receives its power to rule by virtue of a Basic Law, and therefore cannot judge the source of its own power. This hearing illustrates the need for a series of judicial reforms,” Netanyahu said.

The Nation-State Law was passed in July 2018. It codifies into law that “Israel is the nation-state of the Jewish people.” The law was criticized by opponents for undermining the rights of minorities.

Netanyahu said in answer to critics shortly after the law was passed: “Israel is a Jewish and democratic state. Individual rights are anchored in many laws including Basic Law: Human Dignity and Liberty. Nobody has harmed – and nobody intends to harm – these individual rights.”

He also said, “Without the Nation-State Law it will be impossible to ensure for [future] generations the future of Israel as a Jewish national state.”